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733 F.

2d 970

UNITED STATES of America, Appellee,


v.
Ronald THORNLEY, Defendant, Appellant.
No. 83-1473.

United States Court of Appeals,


First Circuit.
Argued March 9, 1984.
Decided May 2, 1984.

Richard M. Egbert, Boston, Mass., by appointment of the Court, with


whom Harry C. Mezer, Boston, Mass., was on brief, for defendantappellant.
Robert D. Krause, Asst. U.S. Atty., Providence, R.I., with whom Lincoln
C. Almond, U.S. Atty., Providence, R.I., was on brief, for appellee.
Before COFFIN, BOWNES and BREYER, Circuit Judges.
BOWNES, Circuit Judge.

1THE PREVIOUS PORTIONS OF THIS OPINION WERE RELEASED IN


UNPUBLISHED FORM1
Sentencing
2

Finally, defendant contests the sentence imposed by the district court under the
dangerous special offender statute, 18 U.S.C. Sec. 3575. Under this statute,
which apparently has not been used before in this circuit, a defendant convicted
of a felony is subject to an enhanced sentence if found to be a "dangerous
special offender." Section 3575(b) provides in pertinent part:

3 it appears by a preponderance of the information, including information submitted


If
during the trial of such felony and the sentencing hearing and so much of the
presentence report as the court relies upon, that the defendant is a dangerous special

offender, the court shall sentence the defendant to imprisonment for an appropriate
term not to exceed twenty-five years and not disproportionate in severity to the
maximum term otherwise authorized by law for such felony. Otherwise it shall
sentence the defendant in accordance with the law prescribing penalties for such
felony. The court shall place in the record its findings, including an identification of
the information relied upon in making such findings, and its reasons for the sentence
imposed.
4

A defendant is classified as a "special offender" within the meaning of the


statute if his criminal history falls into one of three categories under Sec.
3575(e)2 . Under Sec. 3575(f), "[a] defendant is dangerous for purposes of this
section if a period of confinement longer than that provided for such felony is
required for the protection of the public from further criminal conduct by the
defendant."

In this case, two sentencing hearings were held. A hearing was first held to
determine if the defendant was a "dangerous special offender"; it was
determined that he was. A second hearing was then held on the sentence to be
given; defendant was sentenced to a seven-year term of imprisonment to be
served consecutively to a five-year term he is currently serving for a Dyer Act
conviction. The maximum sentence for the offense of which defendant was
convicted was two years imprisonment.

Defendant conceded at the sentencing hearing that he was a "special offender"


under Sec. 3575(e) but disputes that he is "dangerous" under Sec. 3575(f).
Defendant has obliquely suggested that the statute may be unconstitutional
because it uses the "preponderance of the evidence" standard. Since this
contention was not raised below, it is untimely and we do not consider it.
United States v. Sachs, 679 F.2d 1015, 1018 (1st Cir.1982).

The sentence imposed under 18 U.S.C. Sec. 3575 is subject to review under 18
U.S.C. Sec. 3576, which provides in pertinent part:

8 court of appeals on review of the sentence may, after considering the record,
The
including the entire presentence report, information submitted during the trial of
such felony and the sentencing hearing, and the findings and reasons of the
sentencing court, affirm the sentence, impose or direct the imposition of any
sentence which the sentencing court could originally have imposed, or remand for
further sentencing proceedings and imposition of sentence, except that a sentence
may be made more severe only on review of the sentence taken by the United States
and after hearing.... The court of appeals shall state in writing the reasons for its
disposition of the sentence.

Cognizant of the importance of appellate review of sentences imposed on


dangerous special offenders and the broad range of our review powers, United
States v. Felder, 706 F.2d 135, 137-38 (3d Cir.1983), we turn to defendant's
claims.

10

Defendant first argues that the district court "relied heavily" on pending
indictments in finding him a dangerous offender. The short answer is that this is
not so. Our review of the sentencing hearing shows that the court evaluated
defendant on the basis of the presentence report, his prior extensive record, and
a psychiatric report. The court was, of course, aware of the pending indictments
and was entitled to consider them.

11 factors considered in determining dangerousness are not different from factors


The
normally considered by a judge in the sentencing process, nor is the discretion
vested in the trial court any greater than discretion usually exercised in sentencing.
Many procedural protections applicable upon trial of guilt or innocence do not apply
to the determination of sentence after conviction. The court is not restricted at that
stage to information received in open court. Williams v. New York, 337 U.S. 241,
250-51, 69 S.Ct. 1079, 1085, 93 L.Ed. 1337 (1949).
12

United States v. Neary, 552 F.2d 1184, 1194 (7th Cir.), cert. denied, 434 U.S.
864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977). See also United States v. Warme,
572 F.2d 57, 62 (2d Cir.), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56
L.Ed.2d 393 (1978). It has been expressly held that indictments may be
considered by a sentencing judge. United States v. Papajohn, 701 F.2d 760, 763
(8th Cir.1983); United States v. Garcia, 693 F.2d 412, 416 (5th Cir.1982);
United States v. Metz, 470 F.2d 1140, 1142 (3d Cir.1972), cert. denied, 411
U.S. 919, 93 S.Ct. 1558, 36 L.Ed.2d 311 (1973).

13

Finally, defendant argues that the sentence of seven years was disproportionate
to the maximum sentence of two years for the offense itself. Our review of
other sentences imposed on dangerous special offenders where the underlying
conviction was also based on 18 U.S.C.App. Sec. 1202(a) shows that the
sentence was well within the range of sentences given in those cases: six years-United States v. Cox, 719 F.2d 285 (8th Cir.1983); twelve years--United States
v. Davis, 710 F.2d 104, 109-10 (3d Cir.1983); ten years--United States v.
Harris, 703 F.2d 508, 509 (11th Cir.1983) (rev'd on other grounds ); eight
years--United States v. Williamson, 567 F.2d 610, 616-17 (4th Cir.1977); five
years--United States v. Bowdach, 561 F.2d 1160, 1163 (5th Cir.1977).

14

We have carefully considered the record, the entire presentence report, the
information submitted during the trial, the sentencing hearing, and the findings

and reasons of the sentencing court.


15

The defendant has an extensive adult criminal record starting with the
conviction for assault on November 25, 1958. The subsequent offenses for
which defendant was convicted include robbery (1959), assault (1960), assault
and battery (1963), assault (1963), attempted breaking and entering at night
(1965), attempt to commit a felony (1965), possessing burglary tools--search of
car revealed an automatic pistol and a revolver (1965), assault with a dangerous
weapon (1967), assault (1970), committing a crime of violence while armed
with a dangerous weapon and assault with a dangerous weapon--defendant shot
victim three times in leg (1965), assault on a correctional officer (1975).

16

The presentence report contains this summary of a psychiatric evaluation:


"Thornley's difficulties are on the basis of a personality disorder; namely, that
of a passive-aggressive personality and that he is liable to continue to act
aggressively if his masculinity is threatened."

17

The probation officer noted that Thornley's "past incarcerations and previous
period of probation supervision have not positively affected his behavior."

18

We affirm the district court's finding that defendant is a dangerous special


offender and affirm the sentence of the district court.

19

Affirmed.

The text of footnote one appeared in the portion of the opinion that was
released in unpublished form

18 U.S.C. Sec. 3575(e) provides in pertinent part:


(e) A defendant is a special offender for purposes of this section if-(1) the defendant has previously been convicted in courts of the United States, a
State, the District of Columbia, the Commonwealth of Puerto Rico, a territory
or possession of the United States, any political subdivision, or any department,
agency, or instrumentality thereof for two or more offenses committed on
occasions different from one another and from such felony and punishable in
such courts by death or imprisonment in excess of one year, for one or more of
such convictions the defendant has been imprisoned prior to the commission of
such felony, and less than five years have elapsed between the commission of

such felony and either the defendant's release, on parole or otherwise, from
imprisonment for one such conviction or his commission of the last such
previous offense or another offense punishable by death or imprisonment in
excess of one year under applicable laws of the United States, a State, the
District of Columbia, the Commonwealth of Puerto Rico, a territory or
possession of the United States, any political subdivision, or any department,
agency or instrumentality thereof; or
(2) the defendant committed such felony as part of a pattern of conduct which
was criminal under applicable laws of any jurisdiction, which constituted a
substantial source of his income, and in which he manifested special skill or
expertise; or
(3) such felony was, or the defendant committed such felony in furtherance of,
a conspiracy with three or more other persons to engage in a pattern of conduct
criminal under applicable laws of any jurisdiction, and the defendant did, or
agreed that he would, initiate, organize, plan, finance, direct, manage, or
supervise all or part of such conspiracy or conduct, or give or receive a bribe or
use force as all or part of such conduct.

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